Repost: Not the war on men you’re looking for

(This was originally posted at Boots Theory yesterday when The Standard was down.)

It’s headline news: Labour supports re-starting a Law Commission review initiated by Simon Power to investigate possible changes in our judicial system including the option of adopting an inquisitorial approach in cases of sexual violence. Shocking stuff!

Hang on, why is that headline news? Because the Herald and David Farrar have chosen to spin this story into a tale of Labour’s continued War On Men.

Tom Scott has helpfully illustrated the debate with a cartoon in which the personification of Justice is clearly asking for it with her slutty attire and manhating ways.

There are so many things I want to say but just can’t find the words for. The statistics are all out there: the utter everyday common-ness of sexual assault. The under-reporting. The horrifyingly low level of prosecutions, much less convictions. The trauma and pain that survivors go through on a routine basis just to get a smidgen of justice.

All I can really focus on are these two incredibly ignorant statements from DPF’s hysterical little post:

Bear in mind that even if you are married to them, that is not proof [of consent].
…
If it is what you say vs what they say, you will lose.

And all day today, I’ve seen men on Twitter and Facebook say things like “if this happens men will be afraid to be in a room with a woman without a witness!” or “what if my ex suddenly decides to attack me with a false accusation?” or “how can I possibly prove my innocence when it’s their word against mine?”

Here’s the thing, men. If those ideas horrify you, you need to understand one thing: that’s how women feel all the time. These are the thoughts we’re already having. The reality is that somewhere between 1 in 3 and 1 in 4 women will experience sexual violence in her lifetime – and that’s an overall statistic, because it’s far higher for women of colour, for example.

I can appreciate that when the only version of this story you hear is the David Farrar “Labour will murder everything you hold dear” spin, you might start to get worried, and you might decide to completely ignore the realities of how our justice system treats sexual violence (9% estimated reporting rate, 13% conviction rate, awesome!).

But the only thing Labour is guilty of is considering an expert, independent review of our justice system. That’s all.

On the other hand, after a day of reading awful, heartless comments like “this is just about protecting victims’ feelings” I have to say this. If it were the radical man-hating straw-feminist outrage that the Herald and DPF are trying to sell you, you know what? It’s about damn time that the people who commit sexual assault are held to account for their actions, and far beyond time that we stopped persecuting their victims by putting them in the impossible situation of proving they never consented.

I understand her to mean, that some men are demonstrating a fear of having to prove their innocence within the courts, rather than the prosecution having to prove their guilt. (Which isn’t on the agenda anyway).

And yes, women (and men and children) who go through the court process in a sexual assault/violation trial are fearful for good reason. It’s brutal. Rape is the only crime in which the victim has to prove they didn’t consent to being a victim of a crime.

Even Dame Sylvia Cartwright, a former judge and Governor General has stated that:

““If I had a daughter who was raped, I would strongly advise her not to go near the criminal justice system.”

Rape is the only crime in which the victim has to prove they didn’t consent to being a >>>victim of a crime.

Um no. Pretty much any crime that involves lack of consent (theft being a major one) requires the crown to prove that there was a lack of consent. If I take your car, it’s not theft if you consent that I take your car.

Yes in the case of theft of a car, the fact I am in possession of my car keys sort of proves a lack of consent from my end. Unfortunately there isn’t such an easy way to show lack of consent in rape cases…

s219 requires theft to be “dishonest” and “without claim of right”. In other words, if I say that you gave me your car, you have to prove this is false beyond reasonable doubt. In other words, you have to prove that you didn’t consent to having your car taken, because if I honestly took your car, it isn’t theft.

BTW, rape/sexual violation cases actually require a second hoop to jump through – even if the victim isn’t consenting, the crown has to prove that the accused lacked a reasonable belief that there was consent. If the alleged rapist reasonably believed that the sex was consensual, it isn’t rape.

Yes, I know. But it is an objective test, like the UK yes? It’s based on whether another person in the same situation would reasonably believe there was consent. Not simply a subjective belief held by the accused.

It squicks me out completely that car theft, and “claim of right” is being equated to consent issues in the bodily autonomy of another person.

Lets try another crime that relates to the bodily autonomy of another person. Does a person who has been assaulted need to prove they did not give permission to be hit and that the accused had no “claim of right” to punch him/her?

That’s being somewhat disingenious. Some might say that playing in a rough sport or hiring a dominatrix is “consent” in the case something bad happens to you. Emergency and military personal give up bodily autonomy all the time. Unpalatable as it is, the law, for the most part, is about empirical proof and not emotions, and for good reason.

BM is sort of correct about consent, at least in theory. For example, let’s say I am accused of burglary and theft of something from someone’s house. In court, I can require that the prosecution prove who owned the house and the item, and that they hadn’t given me permission to dynamite the back wall of their house and take said item. In practice, requiring that they prove that would severely piss off the judge, so it very seldom happens. In practice, BM’s argument stands beside all his others as total garbage, but we’re used to this from Tories. From trickle down economics to sexual violence, they get everything wrong.

Well strangely enough I do regard fiddling with the basis of our legal system to effect a change directly in contradiction of the New Zealand Bill of Rights Act (1990) and the United Nations Universal Declaration of Human Rights (1948) to be “shocking stuff”. That’s without even going into a critique of inquisitorial justice – France being the only OECD country that still has it, and many of their rape cases never getting past the investigating judge into court, and being abandoned by Italy. I think that might be slightly different than “fear of having to prove their innocence within the courts, rather than the prosecution having to prove their guilt.”

And no, rape is not the only crime in which the victim has to prove they didn’t consent to being a victim of a crime. Hence tort law.

“Well strangely enough I do regard fiddling with the basis of our legal system to effect a change directly in contradiction of the New Zealand Bill of Rights Act (1990) and the United Nations Universal Declaration of Human Rights (1948) to be “shocking stuff”

So do I. But that’s not what is being proposed – Little’s muddled and confused commentary notwithstanding.

But it does. Requiring the accused to provide consent is a violation of the presumption of innocence enshrined in the Bill of Rights, the Universal Declaration of Human Rights, and the UN International Covenant on Civil and Political Rights. It’s not muddled wording or interpretation, it is a priori ipso facto.

IIRC the Supreme Court has already ruled the presumption of supply in the Misuse of Drugs Act violates the Bill of Rights Act for exactly, exactly the same thing (another example of rape not being the only crime in which the victim has to prove they didn’t consent to being a victim of a crime).

Also, these inquisitorial processes remove the right of plea and drag on for months and months, which is not something any rape victim should have to go through.

Given New Zealand makes use of the rule of predent and that Labour has so far been very fuzzy on what it actually does intend, it would seem prudent to try and set up some parametres of acceptability. There are very few real world inquisitorial examples for us to model any law change on (it would be unlikely we’s try and do it from scratch). There’s the French model, which is probably worse at prosecuting rape cases than our current one. There’s teh Italian one, which they supposedly abandoned but is still hanging around in a hybrid form and is worse than the French system for delays, theatrics, circumstantial evidence, hearsay, and crusading judges with agendas. And in the US it is sometimes applied in tribunal form to low level, low stakes stuff like traffic offences. None of these seem particularly useful to me.

The Law Society has already repeatedly expressed it’s rejection of the inquisitorial system in general and in specific on many occasions and the Supreme Court has already rejected a similar implementation to the proposed in the Misuse of Drugs Act. It’s hardly speculation.

Given the Labour party is unlikely to listen to anything I have to say anyway, based on this why the fuck shouldn’t I prejudge to my heart’s content without being called names. Hello. Internet. n00b.

You know, if your ideas were thought out based on available evidence rather than prejudged to your heart’s content, you might find that people (including in the Labour party) are more likely to listen to what you have to say.

The Law Society has made various reasonable statements about presumption of innocence.

The Law Commission has not yet completed its review of whether (as part of a general review of a catastrophically broken system) that question should even be raised.

Meanwhile, rapists continue to act with near-impunity.

Your hand-wringing at the worst-case scenario (she says rape = he is automatically sent down for a dime) when all Labour’s policy consists of is reviewing whether a broken system can be fixed is sweet, but irrational.

Your hand-wringing at the worst-case scenario (she says rape = he is automatically sent down for a dime) when all Labour’s policy consists of is reviewing whether a broken system can be fixed is sweet, but irrational

I didn’t say that at all and fuck you for suggesting it thanks very much. Constitutional law likes to take worst case scenarios into account – that’s sort of why it’s there.

If you didn’t say the worst case scenario, why feel the need to justify saying it?

It’s really fucking simple. If a 1% incidence:conviction rate is fine, then we don’t need to review the system. If that rate is a sign of a broken system, then that system needs a review to see if we can handle these cases in a better way. Just like how we have different mechanisms to handle youth crime and family disputes like divorce.

Whining about the repercussions of a decision that hasn’t even been reached yet is just diverting from the problem at hand.

“IIRC the Supreme Court has already ruled the presumption of supply in the Misuse of Drugs Act violates the Bill of Rights Act for exactly, exactly the same thing (another example of rape not being the only crime in which the victim has to prove they didn’t consent to being a victim of a crime).”

This doesn’t show what you say it’s showing regarding the misuse of drugs act being another example of a victim having to prove they didn’t consent to being a victim – for the simple reason that a person charged under the Act is not a victim/complainant in a trial – they are a defendant.

Yeah besides France and Italy’s mixed system only back waters such as Germany, Netherlands and Japan practice Inquisitorial courts. The most wide spread form of Justice is obviously in the minority as we don’t really count the world outside of the English speaking Empire/dominions/commonwealth.

The rest of the the world as also committed the error of speaking in non-english language and wide ranging historical precedence and use in countries such as Indonesia, Germany, China, France, Japan and India can be safely discounted into just France and Italy for disassembly in smearing Inquisitorial court systems because not enough ties (or rejection in the case of India when they abolished jury trials in the 60s) to english legal systems. After all comparative thinking is well ‘ard for conservatives.

The German system doesn’t work quite as you seem to think it does – but sure, oopsie, I forgot Germany, which has it’s own problems (they didn’t outlaw marital rape until 1997) and let’s just look at that list of bastions of fair and prudent justice:
Indonesia
China
Japan
India

Yeah there are a lot of countries with varied implementations of inquisitorial law as it is the most wide spread form of “Justice.” It is serviceable and has a number of advantages for rape cases. Due to it’s wide spread nature there are inherently more models to choose from for comparison (and picking and choosing) than just your lie that only France/Italy have it as a legal system. Every Inquisitorial system can be traced back to the French (Indonesia via dutch) or German model (China/Japan) and it’s the main legal system with variations throughout the world.

Old blighty it self is facing increasing calls to look at inquisitorial systems to apply in rape cases, as the adversarial system places far to much pressure on the victim. http://www.theguardian.com/society/2014/feb/04/greater-manchester-police-rape-cases
Because has been recognised that in rape cases the victim is essentially placed in trail in a adversarial system such as ours and the UK, aka a unwanted outcome.

Even within Common law adversarial forms if Justice as USA, UK, NZ, Aust there are already allowances for trials san’s jury aka the charge system in Aust and NZ army. If the Inquisitorial system offers advantages it can be applied even within common law frame work societies.

What a quaint and rather romantic extrapolation of contemporary heterosexual domestic relations. Patronising, fanciful, and seemingly stuck in the 1950s, but bravo. My mother, born at the end of WW2, and my paternal grandmother, ten years older than that, certainly have never been shy of voicing what was on their mind – but then this is New Zealand (first place to give women the vote, yadda yadda), not Saudi Arabia.

Pop. Not quaint. Just my experience. And you have no idea of the ways my mother attempted to school me into playing a subservient role. My mother and grandmother were also quite articulate and assertive in many ways, while also, in others ways explicitly putting the men in their lives on pedestals.

And there was a subtext going on about the things I was expected to say not to upset men, and the ways I was being schooled into doing domestic labour that my brothers never were expected to do.

And the guys did have an expectation of the superiority of their voice and activities – probably something they weren’t that aware of themselves, it was just so normalised.

Of course the gendered differences weren’t blatant like in Saudi Arabia – but no less real for all that.

The actual messages I got from my parents were confusing and contradictory. But underlying it was the inequity, and the implied and expected subservience of women in many ways.

Yes – that was the 1950s to 60s. But BM had just said his wife was cooking dinner, while he, was busy reading the above post to his wife – in a totally neutral voice I’m sure. What’s not to extrapolate.

That possibly people take turns cooking dinner, or passing judgments on how people choose to divvy up domestic responsibilities is kind of low, or that some people actually really enjoy cooking quite irrespective of their genital arrangements.

The cases most likely to continue through to conviction are those which most resemble the “stranger rape/attacks”.

Incidentally, the majority of the 8% of false complaints that were covered in this study were stranger rape allegations, and the majority of that 8% had either mental health and/or intellectual disabilities. (Not vengeful ex-wives etc)

Yes so many of us have had a gutsful of thinking, “I shouldn’t be walking here at night alone”.

Many men don’t get what this is like. Many of us have had experience of being personally violated. Maybe BM “lady” has not. She might try asking her friends, mother, aunts, sisters nieces. It doesn’t take long to find people close in one’s life who have had these experiences.

If in any doubt about the extent of the problem the name Rolf Harris, should stop everyone in their tracks. There is a real problem out there. We need to change things to reduce then stop it.

Reviewing the law is one way. If guys have anything to fear, then yes, maybe they are better off to ensure there is always another person around when they are in the company of a woman. If they have nothing to fear, then it will be o.k. Very, very few women make this stuff up. And usually the police discover this in their investigations.

Sorry, but the basis of our legal system is innocent until proven guilty, and moreover the crown must prove your guilt beyond reasonable doubt. The reason? Because we as a society would rather have a guilty person walk free than an innocent person be convicted of a crime they did not commit. And that’s a good thing.

Sacrificing the basic principles on which our justice system rests in order to get a few more convictions (some of which may well be of people who were innocent) would be a serious error.

This isn’t an issue of being “taught to fear” anything (for what it’s worth, I’m a loyal leftie who utterly loathes the Herald and Farrar). It’s just the simple fact that once you start forcing defendants to prove stuff, you’re getting onto very dangerous ground: innocence ceases to be the default. If the accused can’t prove consent, and it becomes the classic he-said-she-said, what then, other than guilt becoming the default?

At least one convicted murder has had their conviction quashed because the trial judge’s summing up asked the jury to consider whether the accused had satisfied them of something. The quashing was because the accused doesn’t have to satisfy anybody of anything. That’s the crown’s job. Our legal system takes this sort of thing very seriously.

The inquisitorial system isn’t about getting the defendant having to prove anything. It’s about getting at the truth. It’s a different system from the contest where the Crown has to prove the defendant is guilty, and the defendant tries to at least show “reasonable doubt”.

So actually ultimately, once the agonisingly long process of jumping through hoops is concluded, it in fact DOES become about “getting the defendant having to prove anything”. No jury, no right of plea either, not to mention the provision for the consideration of hearsay and circumstantial evidence as well.

quoting the actual policy (emphasis added for those who rely on impartial reporting from the Herald to find out what Labour’s up to):

Labour will allow the Law Commission to complete its review on alternative trial mechanisms, including the establishment of a specialist sexual violence court and consider reforms that provide real justice to survivors while protecting the right to be presumed innocent, including: cross examination rules, alternative trial processes, establishment of sexual violence support, specialist training including on the dynamics of violence, support services during justice processes, and changes to the definition of consent.

Like most Labour proposals, clear as mud with the left hand not knowing what the right hand is doing and a lot of free association and not really paying attention to what the Law Society and the Suprem Court have already said.

I would have thought that Simon Power wanted it in the first place should have set all sorts of red flags waving.

This is why further down at #7 I’ve commented that I think Little has screwed up. There is nothing in the Law Commission’s inquiry to date that allows for or even discusses the potential to reverse the burden of proof to the defense. In fact, that was a submission made to an earlier Taskforce inquiry, and was dismissed before the Law Commission took over.

“94. This has not been proposed as an option because a review of the burden of proof would raise major Bill of Rights concerns, such as the right to be presumed innocent until proven guilty.”

Perhaps we could start by doing away “evidence” of a woman’s prior activities as being at all relevant, given a man accused of rape can have raped a woman before and it is currently deemed of no relevance.

Don’t be fooled by right-wing spin; it is just the right-wing playing their usual fear-mongering routine to try and get people on their side.

I agree with Karol – for example from the Herald article that Stephanie links to:

The Law Society has a strong stance on traditional principles of the legal system, including a presumption of innocence until proven guilty beyond reasonable doubt. It has argued strongly against inquisitorial systems in the past.

Mr Little said the inquisitorial system still preserved those principles because the Crown would still have to prove a number of aspects of a case before consent was explored.

“I don’t accept that that is creating an offence under which the defendant is guilty until proven innocent.”

….In such a system, a victim would not be cross-examined by a defence lawyer.

“A defendant is entitled to have the evidence tested, but rather than face a defence counsel, which can be humiliating, a more controlled way is for the judge to conduct the examination, with counsel conferring with the judge beforehand,” Mr Little said.

“That way a complainant can be assured the judge isn’t there to do the best for one side or the other, but is there to get the information.”

It doesn’t matter whether he accepts that or not. That’s for the Supreme Court to decide and they’ve already thrown out similar legislation in the Misuse of Drugs Act. More to the point, I’m more inclined to listen to the opinion of the New Zealand Law Society than Mr Little’s.

I think it is highly unlikely that Labour would go against what the Law Commission, Law Society and/or Human Rights Commission would recommend. Labour, after all, do tend to follow processes and listen to expert advice diligently unlike National. As I already put forward, I think this is yet another example of the media cultivating fear and hysteria against Labour. It is just more of the same old.

There doesn’t seem to be a whole lot of information on this, however there is this from Newstalk ZB:

Labour’s downplaying its justice spokesman’s proposal to shift the burden of proof in rape cases.

The party wants the Law Commission to consider a shift to an inquisitorial system – to make courtrooms less combative for alleged victims of sexual assault.

Mr Little’s suggested the defence should have to show there was consent, to prove the accused’s innocence.

But leader David Cunliffe says Labour will await expert advice on the idea.

“I think he was saying what I’ve been saying which is that it is a matter for the Law Commission.

“There’s a range of options on the table.

It would appear that the media are distracting from the main point of Labour’s message that Labour intend to start up the Law Commission’s inquiry into the matter which was stopped by National.

Hmmm, that’s disingenious, or are you forgetting Simon Power’s gallumphing around the legal china shop? And actually, if you want to look it up, the Law Society has given it’s opinion on numerous occasions when it has been mooted – always negative. I think I can guess what they’ll say this time.

I commented on Open Mike earlier today on the issues of (in my eyes) Little’s inaccuracy in speaking to the current debate. Re-posting it here in case anyone wants a bit more background to the Labour Party Policy.

… I have to say, I think Little is doing a crappy job of speaking to the discussions/work/research that culminated in the Law Commissions inquiry, subsequently brushed aside by Collins.

A bit of background: in 2007, the Commission of Enquiry into Police Conduct Report by Margaret Bazley was released. Undertaken after the Louise Nicholas debacle, it led to a further investigation by the Law Commission into evidential law.

Following recommendations within that report, the Government set up a “Taskforce for Action on Sexual Violence”. Different specialist groups and Government Departments researched specific areas, resulting in a number of suggestions and recommendations, including that the Law Commission undertake an inquiry into alternative trial processes.

It’s important I think, to point out that the submission made during the Taskforce enquiry to reverse the burden of proof was not proposed, and was not further investigated by the following Law Commission enquiry.

” 94. This has not been proposed as an option because a review of the burden of proof would raise major Bill of Rights concerns, such as the right to be presumed innocent until proven guilty.” (from the above link)

Below is a link to the background and scope of the Law Commission’s enquiry into alternative trial procedures, and information on inquisitorial as opposed to adverserial trial procedures. It was to Simon Powers credit that the work begun years earlier, was continued under his watch in 2010. He was of the belief that an inquisatorial trial model would be more effective in sexual abuse cases, and possibly DV cases as well. (the jury is still out on that – the conviction rates are similar for both styles worldwide – but it is thought that the process is less brutal for victims/survivors)

Given that there’s seems to have been a substantial, official process of consideration of the issues involved it seems sensible to proceed on that basis.

It seems to me that the only reason not to proceed as Labour is suggesting would be the argument that claims of serious problems for the alleged victims in rape trials are either greatly exaggerated or mistaken. Is anyone arguing either of those positions on the basis of evidence? If not – and therefore the claims of problems in the system are accepted – then what are the other proposed remedies, if any?

It seems from the link that inquisitorial systems are varied and flexible and tend to involve ‘phases’ (investigative, examining phase, the trial).

Two quotes from the table in the link above, concerning the inquisitorial approach:

“Traditionally there is no ability for the defendant to plead guilty.”

“In both systems the accused is protected from self-incrimination and guaranteed the right to a fair trial.“

Yes, one reason I highlighted that comment about ‘traditional’ practice in inquisitorial systems was that it did seem to preclude public declaration of wrongdoing.

Having said that, I see no reason why the ‘defendant’ couldn’t provide evidence in the investigative phase or later phase of an inquisitorial process to the effect that they, at least, believe they did it. (I don’t think that “protection from self-incrimination” – which occurs in both approaches, apparently – would prevent that, though I may be wrong.)

In some ways it might provide an opportunity to be even more upfront and detailed about one’s culpability – something which a simple ‘guilty’ plea would leave unacknowledged (also, guilty pleas leave open the possibility that motives other than remorse were behind it).

“An alternative system has been posited that may or may not alleviate the problem: I see no evidence that it will, and conversely will not help.”

Golly, sounds like it might be a good idea to get a venerable legal body to gather and review the evidence that you haven’t yet seen, so that a balanced decision can be made! Now, who might we get to do it…?

“I think the sad thing about this idea is that the same people and attitudes will administer whatever system: can we really expect better results from the same culture?”

Sorry, Ennui, but that’s a cop-out – an excuse for doing nothing. Nothing improves if we carry on with that attitude.

So to the “venerable legal body”…you might have noticed that I accuse the same august body of bias against the complainant. So why would I trust lawyers and judges who are failing us, or the politicians who legislate and control the system?

Evidence? Yes I would like some, would you not? Are you the type who says “I am told that there is no danger in the lions cage” and promptly lets themselves in to meet the over-sized pussy cat?

Excuse for doing nothing: I said something had to be done, just proceed with caution. Immediately!

I think that what’s being lost in this discussion is that alternative trial processes that were proposed for submission by the Law Committee _weren’t restricted to Adverserial v/s Inquisitorial trial models.

Two proposals that received support from nearly all stakeholders, (Law Society and the Bar included) more closely resemble Restorative Justice processes. (proposal 5 & 6 in the below link)

Proposal 5: Where there is a complaint to the Police and an offender pleads guilty to a sexual
offence, there would be an option of referral to a specialist sexual violence court. (requires consent from defendant & complainant to proceed and would have caveats around suitability)

This proposal allows for the possibility of other interventions for an offender rather than a prison sentence.

In the attrition rates study I linked to earlier in the thread, a fairly big chunk of complainants withdrew complaints, or did not want to participate in a trial because they didn’t want the accused to go to jail. (usually family members, partners etc) If there were other recourses to justice, it would allow for better resolution for some victims/complainants, and also with effective intervention programs in place, less re-offending by the defendant.

Good point. I linked to the Ministry of Justice comparison of the two approaches because much of the discussion had been about these two systems and I thought it might be useful to have a bit more information about them out there.

I assume all of the possibilities you mention from Sections 5 and 6 of the summary of submissions would still be in the mix as the Law Commission review continued.

I think the main points/questions for me are:

Is there a problem?

If there is, what’s the best process to address it?

So far as I can see the answer to ‘1’ is ‘yes’. The answer to ‘2’ – prudence would suggest – is carefully to review and inquire into alternatives and do that through the most appropriate body.

Asking your partner for verbal consent before engaging in a sexual act is sensible and stating a defendant did ask for consent is of course admissible in court as part of a defence.

As unromantic as it may be, asking for verbal consent should be normal practice for anyone engaging in sexual acts with a new partner. It is simply a modern cost people have to pay for the abhorrent lack of concern our society has historically had for sexual violence. Even in monogamous long term relationships, this seeking of verbal consent is likely to become a more common occurrence in people’s lives.

It is then the job of the lawyers, the judge and the jury to determine if the consent was granted or not. It is not perfect by any means, especially in cases where the parties involved are inebriated. The complex issue of proving consent being granted when either party was intoxicated is I suspect the core issue you and many others do want an answer to. I know of people who have taken ‘happy selfies’ together before engaging in sex, as a means of showing consent (and this possibly supports claims of consensual state of mind at the time) but am not sure there is any legal strength to that scenario as intoxication is usually part of that moment.

There is no simple answer to the question of proving consent when partners are intoxicated.

That is where the personal conscience of those involved must be judged by themselves at the time.
That is where the abolishment of Rape Culture can only lead to better outcomes for all.
If you doubt there is true informed conscious consent do not engage in sexual acts with that person.

If a person has any doubt that an act of sexual contact is consensual, the simplest solution is not to engage. Yes, sex is a complex business sometimes and there are certainly scenarios where the passion of the moment is destroyed by one partner wanting to make clear what the other partner wishes to happen, or not to happen. We all have to navigate this now, and we can only do that by having some very adult conversations about Rape Culture.

If you doubt there is true informed conscious consent do not engage in sexual acts with that person.

Simple, practical question – exactly how in practice are women expected to go about proving lack of consent?

Oh, no problem – we’ll just carry on assuming that most allegations of sexual assault and rape are made by deranged bitches who are trying to harm innocent men. After all, it’s worked fine for centuries; why change?

(And no, I’m not saying it would be OK for a man to be wrongly convicted of rape – but it’s interesting that people are so concerned about this issue but so aggressively disinterested in how many women are assaulted or raped with no redress from our legal system. I would also be interested to know how many rapists repeat the offence, and think we should challenge ourselves to see that the current system is also letting down the future victims, and indeed the offender themselves, who with no intervention has less chance to change his ways.)

This is a complex are of human behaviour. It’s clear that the current approach isn’t working – what’s wrong with a review? It’s not an either/or proposal.

Your first point is perfectly valid. Defining and proving consent is a major problem for both genders. Because sex is usually done in private – and in the heat of the moment the potential legal ramifications are the last thing in either persons’ mind – consent almost always becomes just one persons word against the other. This has always created real evidential difficulties and is why the defence so often finishes up trying to establish consent circumstantially. ie the unfortunate ‘what was she wearing and how was she behaving’ line.

freedom above also makes some very important points. Sex is a very complicated thing. The older you get and with more experience you look back and realise that it is a matter in which neither gender can claim a monopoly on virtue. And with most people engaging with multiple partners (in all manner of styles and configurations these days) the opportunity for things to go badly wrong for escalates dramatically.

My point is that the stakes are rather high for both genders – and given that even the suggestion of rape, much less a charge or conviction, carries all sorts of serious consequences – then if we are going to review this legally I would very much want to see some clear practical and concrete measures that reduce the risk consent being ill-defined, unverifiable and impossible to argue fairly in a Court. (Which cuts of course both ways.)

but so aggressively disinterested in how many women are assaulted or raped with no redress from our legal system.

That case has many strong and powerful voices being made for it. There is every reason to support a review of how sexual assault cases are handled at present. The current system is entirely unsatisfactory for everyone concerned.

The problem is that societal norms make it very hard for women to prove lack of consent, but nobody wants to face up to all the norms that make it hard.

Our beliefs about whether people are likely to have consented depend on societal norms.

Imagine a society that’s like ours except where it is a social norm not to have sex with people you’ve just met, not to have sex whilst intoxicated, not to have multiple partners, to engage in long term monogamy and so on. A young woman who is raped while drunk by an acquaintance is going to have a much easier time persuading a jury that consent was not given, because her case is going to look extremely abnormal to the jury.

Transfer the same victim to our society and the jury will find it very hard to convict for the simple reason that her case looks to third parties a lot like what normally goes on, and it comes down to he said she said.

Given that our society deems the right to have non-incestuous consensual sex with anyone for any reason to be pretty much sacrosanct, and that many people exercise this right with gusto, is it any wonder that women have problems proving lack of consent when there are almost no social cues available to third parties to help them make an informed judgement about whether consent was given.

My bet is that if you asked a serial rapist to design social norms of courtship that would make it as easy as possible for him to rape without being caught, he would design something rather like our present system of sexual freedom. Yet many of the same people who complain about rape culture are the ones who vociferously defend complete sexual freedom. It’s completely myopic and counterproductive.

It’s a useful argument you have made there Tom. All historic societies have striven to control female sexuality in a variety of ways. None of them fully successful and all of them with unintended, sad consequences.

Your fifth paragraph encapsulates the issue nicely. The need to be able to confirm clear-cut consent is a protection for all concerned. I’m not so worried about the relatively rare ‘serial rapist’ as the more commonplace ‘serial predator’ – the person who seduces and manipulates the immature and unwary into unhealthy or toxic sexual relationships that result in distress, shame or worse. (These predators are not constrainted to just the male gender.)

Before we got ‘civilisation’, sex in most hunter-gatherer societies was a relatively public affair. Privacy in these societies is almost non-existent – and while the sex act itself probably didn’t usually happen in full public view – the question of consent would have been obvious to everyone.

Once women became the ‘property’ of the powerful men in the group, the need to defend that property became paramount. Like any valuable property, women would be variously segregated, enclosed or enslaved to prevent unwanted access by outsider males. (The powerful sexual desires of the women were of course irrelevant to their role as child-bearers.) Historically the crime of rape is located not so much as an offense against the woman as victim – but as a theft of property rights against her male owner.

I don’t imagine anyone wants to go back to anything like that patriarchal model. In just several generations (esp. since reliable birth control changed everything) we have progressively and rightly unshackled women from notions of male ownership. I don’t imagine anyone here, including yourself, is suggesting we should revert on that. Yet the echoes – both conscious and subconscious – of our past still reverberate and confuse us.

But as you point out – unconstrained sexuality has come with consequences – and we are still grappling with them.

My pick would simply be to restore a form of sexual morality, but in an egalitarian form that recognises that the point is to protect vulnerable people rather than property or chastity, such that extremes of promiscuity and sexual recklessness are understood as anti-social acts that endanger others. Sure, it would be nice if everyone could live in a free love paradise, but the cost to the 25% of women who end up being victimised is too great a cost in my view.

Of course there’s lots more that could be done, but in my view “teaching rapists not to rape” is pretty hopeless (and RAINN is with me on that one).

Wasn’t it that the Swedish system was so unfair to men the reason why the Left thought it a really good idea for Assange to hide up in some South American embassy?
What about Assange then? Isn’t he a fine example of “rape culture”?

There is a load of rape culture been evident about the way some people on the left have debated Julian Assange. I agree.

It’s a more complex issue than the current diplomatic immunity case in NZ. Tania Billingsley was not a public political person before she outed herself as the alleged victim of an attempted rape.

Assange is a highly political figure since before accusations of rape became public. There’s a murky area of how these accusations are being used by the US to get their hands on Assange. I think there’s a lot of evidence that Assange’s behaviour does support rape culture.

Now, back to the NZ case, culture and law dealing with rape and sexual assault.

Do you agree that there needs to be changes to the rape culture in NZ, and to the way the legal system deals with alleged cases of rape and sexual assault in NZ, grumpy?

“Do you agree that there needs to be changes to the rape culture in NZ, and to the way the legal system deals with alleged cases of rape and sexual assault in NZ, grumpy?”

I think the system works OK but have serious concerns about some peoples attitudes to rape and to how the genuine complainants have historically had an uphill battle to be taken seriously. Tellingly Tania has no complaint with the Police, just McCully and Key.

I don’t think whatever perceived failings there might be with the system justify removal of the right to presumption of innocence but most of all, what really annoys me about the current case, is the current willingness (pointed out today by the Law Society) to risk a successful extradition and proscecution by trying to score hits on John Key.

To my mind utu and the urge to bring the perpetrator to justice should be the imperative. No?

Tania Billingsley’s biggest criticism was of rape culture in NZ, and the way McCully and Key were supporting it.

She also has strong concerns about the accused was allowed to leave the country. She wants to see the accused go through the NZ legal process. She’s not stupid, and will no doubt have weighed up the pros and cons of her outing herself.

Once reports began to come out of Malaysia that the accused was being delayed for psych assessments in Malaysia, it looked to me that it was highly unlikely that he would be returned to NZ.

You seem to be focusing on everything other than trying to understand the impact on Billingsley as a result of how she has been treated by politicians and the higher levels of the police. She was positive about the support she got from the police who she dealt with. She has criticisms about how the police at a higher level acted.

Billingsley seems to have felt disempowered by the whole way the case has been dealt with at a higher level, with everyone talking over her head. She took action to counter that. Why attack the relatively powerless complainant, when the faults about the management of the case lie elsewhere, and with more powerful players?

…yet, the course she has embarked on seems counter productive to her main goal of bringing the alleged offender to justice. Before she went public Malaysia was very forthcoming about sending the guy back, now possibly not so much.

Seems strange priorities to me, how could a couple of missed hits on Key, trump bringing your attacker to justice?

I don’t think her course has been counter-productive at all. Malaysia said they would send him back…. then the delays. Billingsley, and I had no confidence that they would follow through, nor that the NZ government would do all possible to bring him back to NZ.

First he reports on the abuse Billingsley has received from some of the “undergrowth”. Then he says this:

It’s pretty clear that the 22-year-old Wellingtonian is intelligent enough to have expected this sort of poison from the undergrowth, just as she will have weighed the risk of any legal or diplomatic hazard in speaking out.

But she would have been alert, too, to the danger of silence. Had the matter not been revealed by the Herald on Sunday 12 days ago, there would have been no scandal whatsoever, all of it swept tidily under the diplomatic carpet.

The most immediate and powerful impact of her decision to appear on 3rd Degree was to humanise an issue that had until then played out predominantly as a political-diplomatic controversy. Billingsley, whose complaint of sexual assault in early May led to a man being charged by police and then departing the country under diplomatic immunity, told Paula Penfold that she felt she had become “just a backdrop to a political drama”.

If that drama was in any danger of fading out, by waiving her name suppression, appearing on camera and writing an essay to explain her position, Billingsley has reignited it.

Then Manhire goes on to talk about the need for further public examination of the issues around rape, sexual assault and rape culture:

The Malaysian Government’s statements about the deteriorating mental health of the accused were being fed to the media early last week grumpy. Well before there was any knowledge of the interview with Tania Billinglsey.

The incremental process of grooming both nations for the potentiality of ‘not returning him’ was already well under way and if you choose to factor in the alleged victim’s strength of character for standing up and telling the truth as in any way contributing to that decision, then perhaps you have more to consider about your understanding of this topic than you are comfortable admitting.

Yet they were still standing by sending him back. Are you saying that you realised this would threaten the court case but were OK with it because you thought it unlikely he would be sent back. If so, why not just say that?

No. I am saying such claims about the consequences of Billingsley speaking out may be playing into the hands of the Malaysian, and/or the NZ authorities/pollies. I am not sure some Malaysians are speaking in good faith. They may try to use any reason to keep the accused in Malaysia. If not Billingsley’s statements, then something else. And by not speaking out Billingsley risked having the NZ government let the whole thing continue to slide under the carpet.

You seem to be intent on attacking Billingsley, with little interest in the wider picture.

Would like you to explain your thought process that led to this conclusion or are you just going to run away like you usually do when your mouth writes cheques your brain can’t cash.
“Are you saying that you realised this would threaten the court case but were OK with it because you thought it unlikely he would be sent back.”

When people put words in my mouth I want to know where they got them and so far I see diddlysquat proving your statement about what I am meant to have realised!

“Are you saying that you realised this would threaten the court case but were OK with it because you thought it unlikely he would be sent back”

How the hell do you come to that conclusion?

If the Malaysian Government wanted to send him back they would send him back.

Tania Billingsley’s statements should and would have no bearing on the facts of the trial as the facts of the trial all pertain to events prior to her statement on TV3.

I am simply pointing out how the Governments involved have colluded to cloud the issue to such an extent, that the Malaysian Government are now in a position to not send the accused back, in this instance by claiming “ambiguous” diplomatic communication compounded by apparent depression of the accused. At best what was a completely avoidable scenario delays the return and the subsequent trial of the accused. At worst it shows how the incompetence of MFAT has allowed an alleged attacker to escape justice.

Getting justice for her particular case would probably have been considerably more effective in terms of justice, rather than creating a major international snafu that gives certain parties the impression they can carry on with impunity, because after this no government will be touching it with a ten foot barge pole.

I did not say that one person getting justice was going to change a cultural attitude – it would, however, get her justice. We can agree justice is a good thing, no? As opposed to scaring the horses and Malaysia deciding not to play fair.

It is not the law that is the problem, it is rape culture that is the problem. Changing the system will not actually change the culture – only education will do that.

I was highlighting how what Billingsley has done has more ramifications than the two options you provide those of either her case getting taken to court or creating ‘a diplomatic snafu’.

There is also the ramification that she has raised awareness in a manner that might get people shifting to attitudes toward rape and attempted rape in a manner that may lessen the probabilities of such attacks happening in the first place

I was highlighting how what Billingsley has done has more ramifications than the two options you provide those of either her case getting taken to court or creating ‘a diplomatic snafu’.

There is also the ramification that she has raised awareness in a manner that might get people shifting to attitudes toward rape and attempted rape in a manner that may lessen the probabilities of such attacks happening in the first place

How exactly? What rammifications?
The men who know rape is wrong and don’t rape are still going to know rape is wrong and won’t rape, and the rapists won’t care.
Billingsley did nothing wrong and could have done nothing differently and fortunately wasn’t raped.
The real issue here is the lack of limitations on the Vienna Convention. Our domestic awareness of rape culture doesn’t do diddly about that.

If you can see a way around the Vienna Convention at that moment in time, I and the entirety of the international law community, the diplomatic community, and dozens of other interested parties would very much like to hear it.

Because there is a demonstrable difference between inappropriate behaviour and criminal wrongdoing. He might be as slimey as all hell, but there was insufficient evidence of any intent to break the law and therefore it is a disciplinary manner. Precrime. Thoughtcrime. Doesn’t work. You have to prove intent. You might not be able to prove innocence, but if you can’t prove guilt either, you can’t throw people into prison just because they might be dodgy. That would be fascism.

It’s like freedom of speech – you may be legally protected to say whatever you like free from state interference, but you are not free from the public and private consequences.

I don’t think you understand where I, and other typical “males” come from on this. As the father of grandfather of girls, I can only imagine the feelings that goes through men when such things happen to their family, let alone how the victims feel. In most males, the urge to make someone accountable is overpowering and in a large number taking the law into their own hands is probably the first reaction – some do!

It is thus hard to believe that the only chance of achieving any revenge is so casually threatened in favour of political point scoring. To me, if she had shot the guy, I would have given her 100% support but I find this political/media exposure very poor judgement.

I viewed Tania Billingsley’s comments as an attempt to address the cultural attitudes that make rape more likely – i.e. she is attempting to raise awareness in a manner that discourages rape/attempted rape from occurring in the first place.

Would you prefer to have your grand daughters raped and have the perpetrator caught and jailed (or ‘shot’)

OR would you prefer that the chances of having the rape occur in the first place were substantially mitigated?

I don’t think a direct reduction of the likelihood of (potential) rapists experiencing shame and guilt was the main target of what Billingsley articulated.

A potential rapist may be unaffected by Billingsley’s stance but many other people (including other men) will be. How they act matters greatly for dissolving a culture of rape.

Culture is created collectively and doesn’t emerge simply from individuals’ feelings. In fact, it’s largely the reverse. Cultures provide the local moral order in which such feelings are generated, made acceptable or unacceptable in particular settings.

Part of the reason, presumably, that many rapists feel little guilt (if you’re correct in that) is that they operate in an environment that does not elicit that emotional response because it supports – even valorises – attitudes and behaviours that are not a million miles away from the contemplation (and even enactment) of rape.

And I don’t think a strict distinction between ‘culture’ and ‘law’ is justified. Law is a cultural product and it also has a cultural force/weight to it.

Further, if a particular law is undermined by prevailing culture then surely that’s as much an argument for amending the law so that it will not be undermined as it is an argument for amending the culture so that it won’t undermine the law. Both presumably need to be changed.

It’s like laws against racial discrimination. The fact that, in a particular culture, people act in racist ways surely means that the law and legal systems should be modified to ensure as much as possible that such culturally prevalent racism doesn’t infect the law and legal system.

Or should a law and legal system that is compatible with everyday racism – to the extent that it produces racist outcomes and makes it difficult to prosecute racist acts – be allowed to continue unmodified until the culture of racism changes?

John Whitehead to lead inquiry into MFAT
“According to McCully, the inquiry would focus on “the appropriateness and robustness” of procedures to deal with circumstances in which a waiver of diplomatic immunity is sought by the Government, as well as the particular events in relation to the Malaysian diplomat. ”

Seems to me there’s a hell of a lot of room to allow this without trampling on the presumption of innocence. We’re talking about a situation in which a defendant agrees intercourse took place, but declares it was consensual. At that point, doesn’t it make a shitload of good common sense to require the defendant to give an account of the exact basis for his claim that it was consensual? What led him to assume that consent was being offered? Make him list the points that led him to that conclusion. If the list consists of the single item ‘wasn’t struggling’ or ‘didn’t put up a fight,’ you fucking bet a jury’s entitled to draw conclusions about this prick’s innocence or distinct lack of it.

If the list consists of the single item ‘wasn’t struggling’ or ‘didn’t put up a fight,’ you fucking bet a jury’s entitled to draw conclusions about this prick’s innocence or distinct lack of it.

Which overlooks the fact that women (especially younger women) often come to sex with a complex of motives. There is no question that just as males are hard-wired to be aroused by young, pretty and fertile females – many females are equally aroused by the confident, powerful and aggressive male who will dominate them. The 50 Shades of Grey and the ubiquitous ‘rape fantasy’ are just two points of evidence.

Witness the infamous Roast Busters incident. What no-one was willing to say out loud was that acting like total pricks was rewarded by the girls involved apparently returning for more it repeatedly. They didn’t have to drag strangers off the street and rape them under a bush – they simply threw a sex party and the girls got there under their own steam not fully aware of what they were walking into – but attracted to it all the same. This created a toxic and dangerous mix.

Afterwards the girls realised it was all a very bad idea, and then seeing these pricks boasting about it on the net was a further humiliation way too far. They were all far too young and immature to be getting in to that kind of ‘sport-fucking’. Of course it ended badly.

In my own life I have had at least five sex partners who were very clearly into various styles of what can be broadly termed ‘non vanilla rough sex’. Like many women they were highly aroused by being sexually dominated, physically and emotionally. When I first encountered it I had no fucking clue what was going on – in those days I had been brought up to treat girls as delicate, sensitive things to be treated very gently. What a shock to encounter a demand for the exact opposite! As I grew older, what I first imagined to be a bit of an aberration I now know to be almost universal.

With all the shame, ignorance and secrecy around sex in our society it’s little wonder that many have a poor sense of boundaries, of when being confident and dominant stops being arousing and starts becoming abuse. Especially if they are new partners and both inebriated. The potential for misunderstanding and bad mistakes is real. And having it all wind up in a Court is to my view the worst possible outcome for everyone.

I’m trying to cover a book-length topic in a few paras – but what I’m trying to illustrate is that sexual motives and consent are not the simple cut and dried matter some people here would like to pretend. Which is why the question of defining practical and legally clear-cut and actionable consent has to be at the heart of this discussion.

Meh. If fucks like the Roastbusters find that game way too risky to be worth playing because it’s almost certain to end with a criminal conviction, I certainly won’t be wringing my hands over such a terrible loss.

Yep. No one gives a fuck over the Roast Busters sex lives. Its when government decides on the basis of those idiots that its got a supervisory role to play in the sex lives of hundreds of thousands of other people that wider issues should be considered.

many females are equally aroused by the confident, powerful and aggressive male who will dominate them. The 50 Shades of Grey and the ubiquitous ‘rape fantasy’ are just two points of evidence.

As I understand it, the story line is about a very wealthy, experienced older male who essentially coerces – using money, emotional pressure and professional position of authority – amuch younger naïve woman into a relationship where she is dominated, choices effectively removed from her and significant emotional and physical pain inflicted.

Not only is a big screen version being made, but 40M copies of these books have now been sold by some estimates. 3/4 to women.

Red Logix, there is some pretty good research out there on self-reporting sexual offenders that refutes your contention that sexual violation is a result of misunderstanding and mutual inebriation. In fact, it shows that undetected sexual offenders actually use alcohol to inebriate their victims, or choose victims because they are drunk, precisely because it makes it more difficult for victims to come forward and be believed in court. They do it because it works. And they do it again, and again, and again:

“Of the 120 rapists in the sample, 44 reported only one assault. The remaining 76 were repeat offenders. These 76 men, 63% of the rapists, committed 439 rapes or attempted rapes, an average of 5.8 each (median of 3, so there were some super-repeat offenders in this group). Just 4% of the men surveyed committed over 400 attempted or completed rapes.”

I’m asking you, in good faith, to please read the following links which discuss and link to those studies, and maybe re-think some of your beliefs.

I’m quite aware that some offenders do exploit alcohol in that way. I’ve no quibble with that.

Personally I rarely drink and I’ve never ever had sex with someone when either they or myself could be remotely described as ‘inebriated’. Personally I’ve never needed to get someone drunk, or even mildly ‘dis-inhibited’ to get them happily into bed with me. My one and only encounter with a sex assault in my whole life was at a party when I was 17. Two somewhat older girls very publicly sexually assaulted me and then made to humiliate me afterwards. Yes I was a little pissed. In those days no-one even imagined that was a problem – and now I only recall the incident with a mild self-recrimination at how naive I was to let it happen.

But there is no question that across the whole of NZ society lots of people are locked into a bad relationship with alcohol. A small number of men (and some women) maliciously exploit that and I’ve no hesitation calling them out as criminal sex offenders.

it was the “almost universal” part of it. The limited amount of experience that one man could use as a basis for that claim, as indicate by the preceding statement that you quote, makes the “universal” part of it mind boggling. And really, I question if that is something as widespread as RL is claiming.

RL’s comments are quite complex, and cover a lot of ground. He makes some valid points. In the midst of it is a few contradictions and some slippages of logic. I’m too tired today to do a long comment needed to unravel it.

But, there is both acknowledgement from RL of a legacy of vast inequality and male dominance, while also attempting to negate it with comments along the lines of “women are just as complicit and/or bad as men”.

There is victim blaming, (of the roastbuster girls – saying, pretty much they colluded with it) while also acknowledging they were manipulated into situations they hadn’t expected a or wanted -ie things they totally did not desire.

Part of the legacy of extremely male dominated society, there is a long history of girls being socialised into measuring their worth by their perceived attractiveness to men – of defining their worth in relation to men.

And nothing in the girls, or anyone’s behaviour, excuses manipulative, self-serving destructive and abusive behaviour by others – and especially when it’s by those with most social, political and/or economic power in any situation.

I thought RL was saying that sexually, he has found that almost all women did not want to be regarded as “delicate, sensitive things to be treated very gently.” You appeared to interpret that as saying that those women wanted to be raped. I didn’t get that same meaning from it.

Part of the legacy of extremely male dominated society, there is a long history of girls being socialised into measuring their worth by their perceived attractiveness to men – of defining their worth in relation to men.

Yes. And many are fine with that. Just like in our society a lot of men have been socialised into measuring their worth as a person by their job or by their income.

But as I tried to suggest – the arousal that comes with being dominated is far from the whole picture. There is more to female desire than this … but it sure complicates it.

For instance it explains the very commonplace phenomenon of the women whom to outsiders is clearly being abused (one way or another) yet herself is emotionally locked into it and refuses to leave. It explains why many men get locked into behaving badly because it gets repeatedly reinforced by the hot passionate sex afterwards.

And as wtl cogently points out – understanding this may be one of the keys to reducing sexual violence in our society.

Again I’m not saying that ALL women desire to be dominated, ALL of the time. That’s not how it works.

For instance as with almost all hetro males I find young, attractive (read -biologically fertile) preferably naked females an innate turn-on. Everyone knows this about men. It’s part of our hard-wiring. Not even going to apologise for it.

Yet for most of my life I’ve been quite content with family and stability because it was more important to me. But not always.

Much the same applies to women, except their primary desires seem to be around something quite different but equally rational from an evolutionary perspective – they are turned on by men who are confident, cocky, wealthy and physically powerful.

Yet for most of their lives family and stability are more important to them. But not always.

If we are going to have relatively unconstrained sexuality in our society -I’d argue it makes sense to understand the nature of the beast we are unleashing.

@colonial viper
Thank you for attempting to bring some reasoned discussion to Red’s comment.
And Red Logix I don’t know why you persist in attempting to discuss the matter. Surely past unpleasant scrapping should have resulted in treating it like a Corpse Flower – very smelly and attracting flies.

@karol I don’t consider assertions like yours to be of any value in thinking about this matter. It seems that reason flies out the window when sex enters the blog
I hope it is not the case with the women taking part in the discussion that any sex with any man would be unacceptable..

You assertion that “so all women desire to be raped?” was completely misrepresenting what RedLogix said. He did not say that women desired to be raped. He said that in his experience, women prefer men to take a dominating role during consensual intercourse.

The two things are not the same, and I think it is actually very important that we make that distinction clear because it might go some way towards reducing sexual violence in our society.

And yet he mentioned the “ubiqitousness” of “rape fantasy” right after talking about women’s desire to be rape.

“ubiqitous”, “universal” – those are bold claims based on limited evidence – and all as a blurring of boundaries between knowing when consent is given. I don’t question that is the case for some women. I question the extent of it, and the amount that men cannot know when consent is given for sexual activity.

I question the extent of it, and the amount that men cannot know when consent is given for sexual activity.

Fair enough, but I disagree that RedLogix was arguing that men cannot know when consent is given. (It isn’t hard for a man to ensure that consent is given – if there is any doubt, he can simply ask, so if RedLogix is arguing such a point then he is wrong).

Instead, I think what RedLogix was saying is that (some) women prefer to be dominated in bed by men during consensual intercourse. Therefore, men who are dominant are ‘rewarded’ for this behaviour and may take it further and further, until they eventually end up assaulting women. Now of course this is wrong and they should be dealt with accordingly by the law, but it would be better we could stop the assaults from happening in the first place.

So in my mind, and I think RedLogix’s, one way to do so is to accept that in our culture there are a subset of women who like men to behave ‘dominantly’ at certain times, and therefore we should ensure that men learn to properly express this trait – i.e. respecting others and only using their physical strength when it is appropriate to do so, rather than using it simply get what they want with no regard for others.

(It isn’t hard for a man to ensure that consent is given – if there is any doubt, he can simply ask, so if RedLogix is arguing such a point then he is wrong).

Of course asking is the obvious and safe course. But that does not solve the legal problem of proving in a Court that you did indeed ask and get an affirmative. A signed legal document – or a before and after selfie (as some of the more professional kink videos routinely do) – is a step too far for most people.

Nor does it solve the problem in long-term relationships where most people assume consent as a purely practical matter. It would be a counsel of perfection – not to mention a fat file folder – if my partner an I had a signed statement for every sex act we have undertaken this last 14 years.

Nor does it solve the problem where the women quite definitely does not want to be asked about consent at that point – she’s away on fantasy of being ‘taken against her will’ and breaking that flow is the last thing on her mind.

Nor does it solve the problem when one or another is too inebriated to give consent. Ripe setting for a criminal assault – equally just another Friday night for lots of young people these days.

If we are going to get past this consent debate – then understanding these routine non-criminal situations – and explaining how to achieve a practical, working consent that can be fairly argued in a Court is crucial.

Establishing that would go a long way to reducing the fears and risks both genders encounter around sex.

– and explaining how to achieve a practical, working consent that can be fairly argued in a Court is crucial.

I’d be interested in what karol and others would view as satisfactory ‘proof beyond reasonable doubt’ that consent was given by the parties prior to any sexual contact, and also that that consent was not withdrawn at any time during the sexual contact itself (which appears to be what Assange was accused of in Sweden, for instance).

@ Red Logix
“…Of course asking is the obvious and safe course. But that does not solve the legal problem of proving in a Court that you did indeed ask and get an affirmative…”

Ok. But here’s the thing. The burden of proof is not changing anytime soon. Meaning the defendant doesn’t need to prove anything. They don’t need to show any steps taken to ascertain consent. The defendant isn’t required to take the stand period.

It is the complainant (via the prosecution) that is required to prove she/he didn’t give consent.

Further, there is no positive definition of consent given under NZ legislation for what constitutes consent – only conditions in which consent doesn’t exist. (But a Judge may direct a jury that consent must be freely given)

Yes, I’m stating the obvious here, but your comment is predicated on a reversed burden of proof that doesn’t exist.

(Which doesn’t diminish the value of exploring the various scenarios you’ve listed btw)

But whichever way you argue it the current arrangement is unsatisfactory. Consent or the lack thereof is the core of the matter – yet it is frequently impossible to argue in Court directly one way or another. This is not satisfactory from any point of view.

I really don’t have any fixed ideas here. But one suggestion I would make is that it seems to me that a large portion of sexual assaults should not end up in the adversarial or inquisitorial environment of a Court. It is possible to imagine a process less confronting and more healing.

One very common thread I keep seeing over and again is that the victim frequently expresses a desire not so much for vengeance or punishment – but for an admission of wrongness and a change of behaviour. All they very often want is for what happened to them not to happen to more victims.

Yes I did read that earlier. But I’m of the opinion that there are several incorrect conclusions being drawn. The changing of the definition of consent for one. The only change that has been proposed is to add a positive definition, by adding what the Judge may already direct a jury with now i.e: Consent must be freely and voluntarily given.

Re: Alternative routes to justice, I did comment on that earlier here:

Essentially there are other proposals aside from an inquisitorial model that have been canvassed by the Law Commission that reached a high level of consensus by all submitters. They more closely resemble Restorative Justice.

! karol 4.41
Probably most of your assertions though I haven’t read them all. I find this sort of discussion just a bit dirtier than mud wrestling and a sad undertaking.
I was actually looking at your assertion ‘So all women desire to be raped?’
But you are just getting into match fitness now and I will say no more. Slug it out if that is your obssession.

It’s there in what RL wrote. I have referred to the language where this is indicated. I could do a long in depth analysis to explain my point, but don’t have the energy today. But, I think you are not inclined to see it.

You seem quite happy with RL throwing “rape fantasy” “ubiquitous” and “almost universal” into the mix without questioning the lack of evidence to support the extent of such things.

The discussion we are having here is pretty good compared to some of our previous efforts. It’s a tough topic alright – but there are few forums where we can openly attempt to discuss it without falling into one extreme or other of the gender warz.

Nope karol is a great soul and I cross swords with her with respect and care.

You know better than I what a nuanced and complex button that is to be pressing karol.

The word I did use was ‘dominated’. It seems to be a bit of ancient hard-wiring that sometimes gets switched on. In some people more than others. And there is no question that the guys who acted like arseholes and treated girls with disdain got laid more often. It’s a powerful incentive to keep acting that way. Some never grow out of it.

Now you and I are both of an age where the boundary between confident, cocky and pro-active and the dark-side of manipulative, humiliating and abusive is something we can form clear ideas on. Same people at 18 while somewhat pissed and very much in the grip of intense hormones – much less so.

I’d agree. Most men actually still hold dear to an ideal of a long-term, committed and respectful relationship with a partner. Most men hold their family and children as their very highest priority – above their own health, well-being and desires.

I’ve certainly never considered any of my sex partners to be ‘notches’ on anything – I was married 22 years and my current relationship is over 14 years now.

Woah, Karol. That sounds like slut shaming to me. Not cool.
I don’t think your picture of human sexuality is very accurate – it seems to be all men want this and all women want that, when even a cursory examination reveals that sexual relations is a very complex, diverse, and idividualistic thing. Just because some people like to be tied up and pissed on doesn’t mean they get to speak for everyone and vice versa. But some people really like sex – which is fine – and people should feel free to have as much or as little sex as they want and partners are willing to accomodate.
I am not going to judge people who indulge in hook-up culture. Both men and women but notches on their bedposts, and some one night stands turn out to be mistakes without being rape. There’s a grey area there that some of the rad fem persuasion have tried to deny for decades.

See, I’m not convinced by the hard-wiring/evolutionary angle. There are huge numbers of heterosexual men in kink communities that prefer the submissive role – which belies the hard wiring to be sexually dominant theory you’re putting forward.

Hmm. I’ve known a lot of sexually dominant women in my time…different circles?

But on a slightly different tangent – I think the BDSM community could have a lot to offer in teaching how consent can work in the regular world. Communication and negotiation around how we want to proceed sexually and respecting boundaries for a start.

Without wanting to idealise the BDSM community (it’s as full of squabbling egos as any other) you are bang on with that thought. Because their core business is so potentially fraught, physically, emotionally and legally – they do indeed have a lot to teach us about consent, boundaries and respect.

And there is no question that the guys who acted like arseholes and treated girls with disdain got laid more often. It’s a powerful incentive to keep acting that way.

True enough – in which case, a powerful incentive not to act that way might actually come in quite useful. When you read the comments outrage about this policy (not here, I’m thinking Kiwiblog, Whaleoil etc), you get the distinct feeling that the high-minded stuff about the sanctity of the presumption of innocence covers an awareness that what’s proposed would put the sex life of the commenter at risk. It seems to me that if that’s the kind of sex life these people have, it really, really needs to be put at risk. If in future they have to actually stop and consider whether the woman they’re with might feel shamed and humiliated the next day by what they’re doing to her right now, the world could only be a better place.

Oxford definition of culture is “The ideas, customs, and social behaviour of a particular people or society”. Basically, just because some people are assholes does not mean that society should be tainted with the same brush.

What is your definition of “Rape Culture”? How does it differ from mine?

Exactly. You’ve decided to use the term in a different way to how everyone who wants to discuss the problem in good faith is using it, and your definition happens to be so all-encompassing that it ensures no-one will ever be able to demonstrate that the rape-culture we’re talking about is even a thing.

On an unrelated topic McGrath but still addressing your slogan based approach to discussion, here is the reply you may have missed – with the unforeseen delay in posting and the technical issues of recent days it must have slipped your mind that you still have failed to address the numerous points raised in questions put to your views on ‘merit-based’ Education.http://thestandard.org.nz/the-education-debate/#comment-846592

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Superstar of breakfast radio, All Black captain and owner of a world-class duck face, John Key is one hell of a hard act to follow. But is the PM-designate really that boring? Toby Manhire crushes forever the Dull Bill English ...

Article by AsiaPacificReport.nzPacific countries on tsunami alert following a 7.8 magnitude earthquake off Solomon Islands. Image: USGS A tsunami warning has been issued for several Pacific countries – including Papua New Guinea, Nauru, Solomon Islands and Vanuatu ...

He wants to be a tax-raising and lowering, eat-the-rich Trump-but-not-like-that of the political centre. Duncan Greive heads to Parnell for the Gareth Morgan party’s very odd first policy launch. “Make New Zealand fair again,” says Gareth Morgan, more than once ...

New verse by Dunedin writer Emma Neale.Tag From the tangle of trees by the Warrender Street steps near where city council crews have been deleting the fuck-cunts and dick pics sprayed on the path, sharper than the ...

‘Business is Boring’ is a weekly podcast series presented by The Spinoff in association with Callaghan Innovation. Host Simon Pound speaks with innovators and commentators focused on the future of New Zealand, with the interview available as both audio and ...

John Key was first elected Prime Minister in 2008. What was New Zealand like when the era of radio banter, ponytail pulling, and bad singing was just beginning? Having trouble viewing the quiz? Take it here. ...

Article by AsiaPacificReport.nzFear and Desperation: Refugees and Migrants Pour into Greece. Prizewinning footage shot in October 2015 – March 2016, Greece. Video: Rory Peck Awards Will Vassilopoulos, an Agence France-Presse (AFP) stringer since 2011, has won the Rory Peck ...

If we were able to speak to the people we were when we first became parents, what would we say? Kiri Speirs reaches back through the years to speak to the mum she was to her beloved daughter Zoe.Dear ...

Article by AsiaPacificReport.nzOPINION:By Peter S. Kinjap in Port Moresby Many current Papua New Guinean parliamentarians are highly respected individuals in their own areas – successful in business, education or public service. With such backgrounds, they routinely attract great ...

Novelist Graeme Lay bids a belated farewell to Auckland’s least glamorous but most useful shopping centre. It was one of the ugliest buildings in Auckland’s central business district, in a part of town where there was tough competition for that ...

The latest installment of Final Fantasy has been released from its cage into the arms of millions of fans. Resident Fantas-ites(?) Eugenia Woo and Matthew Codd settled around the old Skype and discussed what worked, what didn’t and why the ...

In the face of everything from anecdote posing as evidence to bias peddlers to outright quackery, the best riposte is to champion good science. But how? Dr Jessica Berentson-Shaw offers seven tips. Science and evidence gets a pretty bad ...

Article by AsiaPacificReport.nzA car is half buried under the remains of a collapsed house in Pidie Jaya regency, Aceh, on yesterday after an earthquake measuring 6.4 on the Richter scale hit the northeastern part of the province. Image: ...

Article by AsiaPacificReport.nzRappler’s Evening wRap on President Duterte and the death penalty.By Mara Cepeda in Manila A proposed measure seeking to reimpose the death penalty in the Philippines has decisively passed the House committee level. Voting 12-6-1, the ...

All week this week we recommend the very best, A-grade quality, guaranteed good books for Christmas. Today: The Shops, by Steve Braunias and Peter Black. Why do photographers talk so much? The best thing about working with Wellington photographer Peter ...

An in-depth Spinoff investigation reveals exactly who invented What Now gunge and unravels the mystery of the secret recipe. Calum Henderson reports. A traditional What Now gunging. (Photo: YouTube – ‘What Now’s Best Gunge!’) “I was gunged while wearing a ...

A byelection is likely in Mt Albert should David Shearer’s South Sudan challenge be confirmed, signalling the departure of the last ex-leader, and leaving the question hanging: did Labour err in knifing him? “Former leaders” are a mixed blessing for ...